Delhi High Court
Jitender Kumar Pahwa vs Usha Kiran Pahwa on 26 November, 2014
Author: Sunil Gaur
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: November 26, 2014
+ FAO No.295/2002
JITENDER KUMAR PAHWA ..... Petitioner
Through: Mr. Faisal Zafar, Advocate with
petitioner-in-person
versus
USHA KIRAN PAHWA ..... Respondent
Through: Mr. K.R.Chawla, Advocate with
respondent-in-person
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
JUDGMENT
% (ORAL)
Appellant-husband is aggrieved by impugned judgment of 4th
April, 2002 vide which appellant's petition for divorce on the ground of
cruelty and desertion has been dismissed. The factual background of this
case already stands noted in impugned judgment and needs no reiteration.
Suffice it would be to note that the parties were married on 8 th
October, 1990 and as per appellant, respondent-wife had deserted him in
July, 1992. The appellant's petition under Section 9 of the Hindu
Marriage Act, 1955 for restitution of conjugal rights filed in July, 1992
was withdrawn in December, 1995 as the efforts for reconciliation of
matrimonial dispute between the parties had failed. Apart from deposition
FAO-295/2002 Page 1
of appellant there is evidence of his neighbour-Mr. V.K.Tyagi (PW-2) and
his office colleague Mr. Shyam Sunder (PW-3). Whereas respondent has
herself deposed as RW-1 and got examined an official from Delhi Vidyut
Board to prove that payment of electricity bill (Ex.RW-1/1) was made by
her through cheque on 27th December, 1995. Apart from this respondent
has got examined an official viz. Mr. Ram Dayal (RW-3) from MTNL to
prove that a landline connection in Mayur Vihar house was in use during
the period already in question. Mr. Minocha (RW-4) is a neighbour of
respondent, who has been got examined to corroborate the version of
respondent.
After considering the evidence on record, trial court has noted that
appellant-husband has failed to prove that he was subjected to any cruelty
and that respondent-wife had deserted him.
At the hearing, it was contended by learned counsel for appellant
that respondent was residing in Mayur Vihar house but appellant
alongwith respondent had shifted to a rented house in GTB Enclave in
July, 1992. It was submitted that respondent stayed there for 10-15 days
and thereafter had gone to her parental house and since July, 1992 she has
been living separately. It was pointed out by learned counsel for
appellant that deposition of appellant is fully corroborated from the
evidence of his colleague Mr. Shyam Sunder (PW-3) and the factum of
desertion stands fully established from the evidence on record. To belie
the stand of respondent of her living at Mayur Vihar house from the date
of marriage till the year 2007, learned counsel for appellant has drawn
attention of this Court to electricity bills [Mark X-1 to X-14] to point out
that there was no consumption of electricity which falsifies the stand of
FAO-295/2002 Page 2
respondent of living at Mayur Vihar house. Thus, it was submitted on
behalf of appellant that findings in the impugned judgment stand
contradicted from the evidence on record and so impugned judgment
deserves to be set aside and petitioner's petition on the ground of
desertion ought to be allowed.
Learned counsel for respondent has supported the impugned
judgment and submitted that electricity bills [Mark X1 to X14] are not
admissible in evidence as they are not duly proved on record. It was
submitted that these electricity bills are provisional bills, which have been
given on an average basis and so it cannot be said that there was no
consumption of electricity. It was pointed out by learned counsel for
respondent that deposition of appellant is categoric regarding appellant
alone shifting to another house in GTB Enclave which falsifies the stand
of the appellant of the parties shifting to rented accommodation in GTB
Enclave. Lastly, it was submitted on behalf of respondent that respondent
had categorically deposed that in the year 1992 appellant had been losing
his temper and had tried several times to turn out the respondent from
matrimonial house in Mayur Vihar and the aforesaid crucial evidence
which falsifies the stand of appellant of respondent deserting him remains
unchallenged. On instructions, learned counsel for respondent had
submitted that respondent-wife was always ready and willing to reside
with appellant-husband and even now is ready to live with him.
In rebuttal, it was submitted by learned counsel for appellant that it
has come in evidence of respondent that she has no documents which
establish her possession in Mayur Vihar house and the electricity
connection to the said house was disconnected in the year 1994 and that
FAO-295/2002 Page 3
the evidence of appellant has to be read as a whole and by not doing so, it
becomes evident that appellant has clearly stated in his evidence that
respondent had stayed with him for 10-15 days at GTB Enclave house
and had deserted him thereafter. Regarding appellant-husband now
residing with respondent-wife, it was submitted that after more than two
decades, it would not be possible for appellant-husband to live with
respondent-wife.
Necessary ingredients to establish desertion as spelt out in Bipinchandra
Jaisinghbai Shah Vs. Prabavati AIR 1957 SC 176, are as under:-
"For the offence of desertion, so far as the deserting spouse is
concerned, two essential conditions must be there, namely, (1)
the factum of separation, and (2) the intention to bring
cohabitation permanently to an end (animus deserendi).
Similarly two elements are essential so far as the deserted
spouse is concerned: (1) the absence of consent, and (2)
absence of conduct giving reasonable cause to the spouse
leaving the matrimonial home to form the necessary intention
aforesaid."
After having heard learned counsel for parties and on perusal of the
impugned judgment and evidence on record, I find that the material
deposition of respondent regarding parties having good relations at the
time of withdrawal of petition under Section 9 of Hindu Marriage Act and
of respondent paying electricity bill of 27th December, 1995 by way of a
cheque and of appellant being short-tempered and trying to turn out
respondent from matrimonial house several times remains unrebutted.
This itself demolishes appellant's case of respondent deserting him. The
telephone bills on record contradict the stand of appellant that Mayur
FAO-295/2002 Page 4
Vihar house was locked after the year 1994. It is pertinent to note that
respondent by virtue of an injunction from the civil court had been
residing in Mayur Vihar house till the pendency of civil suit i.e. upto the
year 1999 and during the appeal period i.e. till the year 2007.
Upon testing the evidence on record on the touchstone of
parameters as noted above, I find that appellant-husband has failed to
prove that he was deserted by respondent-wife or that he was treated with
cruelty by respondent.
In view of aforesaid, I find no substance in this appeal.
Consequentially, this appeal is dismissed while leaving the parties to bear
their own costs.
(SUNIL GAUR)
JUDGE
NOVEMBER 26, 2014
vn
FAO-295/2002 Page 5
